The Heritage Foundation is opposed to state nullification. The peons have evidently latched onto an idea that has not been approved for them in advance by either National Review or the New Republic, so it is time for a ritual scolding. Why, didn’t you know, citizen, that if you think a federal law is unconstitutional we can change that law? Happens all the time! All. The. Time. And we have courts, too, which have done a splendid job restraining the institution that employs them. What kind of crank could be unsatisfied with this?

Since I’m getting things together for the first lecture in my online U.S. history course for the Mises Academy tonight, I don’t have time for the usual point-by-point reply. But I don’t need one. I see almost nothing here that isn’t already addressed in my standard reply to objections.

— “There is no state nullification clause [in the Constitution].” This, too, is answered in my reply to objections. Very quickly: In the same way that the state ratification conventions (which is where we are to look for the Constitution’s interpretation) were told that what later became the 10th Amendment was already implicit in the document as written, the Richmond Ratifying Convention of 1788 said the same for nullification. Beyond that, there’s the simple logic of the matter: the peoples of the states are the sovereigns; they in turn apportion powers among the states and the federal government, while of course retaining their sovereignty (no government is sovereign in the American understanding); therefore, the very logic of the system demands that in the last resort the architects of the system must retain (as an expression of the sovereignty they never parted with) the power of final judgment regarding whether their own creation possesses a particular power.

— Madison, in the Virginia Resolutions of 1798, was referring merely to “state actions meant to arouse public opposition, challenge federal actions and ultimately change the objectionable action.” Uh-huh. That’s what the Madison of 1830 would have us believe. I address this on pp. 288–290 ofNullification. Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, forthcoming 2012) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journalof theEarly Republic 15 (1995): 569–89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book. (One quick point: if we’re really expected to believe Madison went to the trouble of drafting formal resolutions affirming a principle absolutely no one denied — “the states may issue formal protests” — why was the response from some of the northern states so negative? Obviously they took him to mean what everyone at the time took him to mean.)

– “Jefferson did use the term ‘nullification’ in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution — admittedly and of necessity outside the constitutional structure.” Pure Straussianism, this. Jefferson’s draft uses the phrase “natural right,” so we’re to believe he is asserting merely an airy-fairy position that has no constitutional grounding but lies “of necessity outside the constitutional structure.” If that were true, I’d say so what — since when is the Constitution an idol? But it isn’t. The grounds on which Jefferson asserts this “natural right’ of nullification are established firmly in history, where we discover that the peoples of the states delegated a few powers to a federal government, while necessarily retaining their sovereign powers intact. If that is the case, then it necessarily follows that they would possess a right of nullification. The alleged “natural right” is merely the logical consequence of the meaning of sovereignty.

In short: quit being so uppity, stick to the most laughably failed strategies in the history of mankind, and have confidence that the strategies officially approved for you by the establishment will surely bear fruit.

6 thoughts on “Et tu, Heritage?”

I wouldn't be about throwing Heritage under the bus for one of their associates fumbling the ball. I will give the Foundation the oppurtunity to clarify their composite position before I would write them off. They have, after all, been serving the conservative cause much longer than anyone of us. And observing that some of the people in here are from academia, I would trust them to have a hidden agenda before I would condemn Heritage.

A disappointment akin to that which I felt when Scientific American joined the Anthropogenic Global Warming cheering section and labeled all nonbelievers deluded. There will be many such disappointments in the months ahead, but what is really happening, for the most part, is not reliably allies turning their coats but organizations and individuals revealing their true colors. Rejoice, fellow lovers of liberty, for we will soon know whom we CAN trust!

Can't begin to tell you how profoundly disappointed–and completely taken aback–I am by Heritage's terrible misunderstanding of the meaning and scope of nullification. Rewriting history is something Heritage should leave to the far left. What part of the 10th Amendment DON'T they understand or, more precisely, are phiilosophically indisposed to understand. I'm speechless. I honestly never saw this coming. Shocking!

Keep up the fight, Tom. I had no idea our struggle would be with Heritage as well as the Progressives and Statists. Wow! We really are in trouble.

The article briefly mentioned something about the rule of law but what most people don't understand is that the law is not really meant to contain people's behavior. It does but it really acts as a container for when the force of government can be used. Its not so much meant to subjugate the people since government can do that anyways but meant to define what conditions will trigger the use of government force against an individual.

The author thinks it is probably noble to be obedient to the government and be a law biding citizen which is probably why he does not support nullification. This is just my guess.

"Many of the options states are pursuing seem to fall within Madison’s categories of legitimate state action. The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius). A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act."

The only thing I can gather is that he thinks it takes more than refusal to comply with a federal statute to constitute nullification. Perhaps he thinks nullification occurs only when one state voids a federal statute for itself and for the other 49 states as well. If so, rather than make him an idiot, just offer some nice advice to help him understand.

So, how did anyone conclude that Madison was referring only to official action to merely sway public opinion? I did not get that from the link in the Heritage article to what Madison wrote in 1800. The Heritage article attempts to quote Madison's 1800 Report by saying, "By interposition, as he explained in his Report of 1800, Madison meant 'expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.'" But in the link to Madison's Report, the quoted phrase is non-existent. So, too, are the the most material words within that phrase non-existent. Am I missing something?

Here is the salient part of what Madison did write, which indicates that the states are indeed the final arbiters on such matters (not pundits, but judges and deciders):

"It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

It does not follow, however, because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole,–every part being deemed a condition of every other part, and of the whole,–it is always laid down that the breach must be both wilful and material, to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only deeply and essentially affecting the vital principles of their political system.http://press-pubs.uchicago.edu/founders/documents…